Central Administrative Tribunal - Delhi
Vinod Kumar vs Union Of India Through on 29 May, 2015
Central Administrative Tribunal Principal Bench: New Delhi TA No. 35/2012 Reserved on: 09.02.2015 Pronounced on:29.05.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Vinod Kumar s/o late Bishwanath, R/o 957 (2nd Floor), Arjun Nagar, Kotla Mubarakpur, New Delhi. Applicant (By Advocates: Ms. Jyoti Singh, Sr. Counsel with Ms. Tinu Bajwa and Sh. Sameer Sharma) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Intelligence Bureau, Government of India, (Ministry of Home Affairs), Through the Director 35, S.P. Marg, New Delhi. 3. The Director general of Police, Jammu & Kashmir, Government of Jammu & Kashmir, Home Department, Srinagar. Respondents (By Advocates: Dr. Ch. Shamsuddin Khan) O R D E R By Honble Dr. B.K. Sinha, Member (A):
The issue to be decided in the instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 assailing the order of repatriation of the applicant from the respondent organization Intelligence Bureau to his parent cadre dated 20.07.2012, is that whether the Screening Committee deciding upon such absorption is to be guided only by the gradings of the ACRs obtained by an incumbent during his tenure with the borrowing organization or other factors are to be taken into account.
2. The facts of the case, in brief, are that the applicant joined Jammu & Kashmir Police as Sub-Inspector on 24.07.1998 and joined Intelligence Bureau (IB) on deputation on 10.04.2008 following due process of selection. The claim of the applicant is that he rendered outstanding services to the borrowing organization and opted for permanent absorption. However, due to non receipt of NOC from his parent department, he was ordered to be repatriated vide order dated 21.04.2011 w.e.f. 30.04.2011. This NOC was received before the proposed repatriation could take effect and, therefore, it was put in abeyance vide order dated 17.06.2011. The applicant states that when despite all hurdles qua permanent absorption having been removed, he was expectantly waiting for the same when he was relieved vide order dated 20.07.2012 with direction to report for duty to his parent organization. A representation filed by the applicant on 24.08.2012 requesting for recall of repatriation order was rejected by the respondents. Aggrieved, the applicant approached the Honble High Court of Delhi vide WP(C) No.5432/2012, which, however, came to be transferred to this Tribunal vide order dated 03.09.2012 directing the parties to appear before the Registrar of the Tribunal on 05.09.2012. This Bench of the Tribunal, vide order dated 07.09.2012, granted stay order in favour of the applicant. That is how he continues on the rolls of the respondent organization.
3. The sole ground that the learned counsel for the applicant has adopted during the course of argument was that absorption in the borrowing organization is not an arbitrary act. It has to be legally justifiable. The learned counsel further submits that the applicant has earned 9 and 9.5 points in his ACRs for the years 2010-11 and 2011-12 respectively which makes the grading outstanding. He further submits that once the applicant has been graded Outstanding, there is no ground on which his case for permanent absorption can be excluded. The applicant has also alleged mala fide against the respondent organization adopting the policy of cherry picking.
4. The respondents have filed a counter affidavit rebutting the averments of the applicant and submitting that it is not the ACRs alone on the basis of which absorption is made but some other qualities are also being required. Had absorption been made on the basis of ACRs alone, it would have become a clerical exercise for which no Screening Committee would have been required to apply its mind. Absorption is done on merit and only those deputationists who gained expertise in IB work during the deputation period are absorbed and not all the deputationists are absorbed ignoring the merit. The respondents have further submitted that the officials whose names have been cited as precedents by the applicant are all working as Constables or Head Constables i.e. Group C posts whereas the applicant is a Group B officer likely to assume higher responsibilities. Therefore, such officers do not constitute sufficient precedent. He has been duly considered by the Screening Committee and found unfit. The respondents further submit that the Tribunal cannot step into the shoes of the Screening Committee. The respondent organization is dedicated to internal security of the country and as such there is a requirement of high confidentiality and performance par excellence. Therefore, once a person has been considered and his case for permanent absorption has been rejected, the organization should not be compelled to absorb the applicant against its better judgment. This issue has already been considered by this Tribunal in a number of cases. In Yogesh Sharma versus Union of India & Others [OA No.3416/2013 decided on 24.12.2014] this Tribunal, relying upon the decision of the Honble Supreme Court in Kunal Nanda versus Union of India & Anr. [2000 (5) SCC 362], had examined the rights of deputationists and came to the conclusion that deputation itself confers no right upon deputationists for absorption. Likewise, the judgment further relies upon the decision in Union of India versus S.A. Khaliq Pasa and Another [Civil Appeal No.368-369 of 2009) wherein it has been held as under:-
"On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd is inappropriate since the consideration therein was in the light of the statutory Rules for absorption and the scope of those Rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. The stand of the respondent Department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that Department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
In the case of Mahesh Kumar K. Parmar and Others versus SI. G. of Police and Others [2002(9) SCC 485], the petitioners before the Honble Supreme Court were Head Constable in Gujarat Police who came on deputation to IB and had served there for 8 years. They were subsequently repatriated to their parent organization. Their claim was that since they had already served the respondents for 8 years, they must be held to have acquired a right to be permanently absorbed in the respondent Bureau or at least a legitimate expectation to be absorbed. The learned counsel appearing for the petitioners argued that the petitioners had served in the Bureau to the satisfaction of the respondents, passed certain tests and there was nothing adverse against them. The Honble Supreme Court held as under:-
Having considered the rival submissions and also the relevant provisions of the rules, we do not see any enforceable right with the petitioners for being permanently absorbed though we see sufficient force in the contention of Dr. Dhawan that the appropriate government should be well advised to consider the retention of these petitioners permanently in the bureau having regard to the case that they have already rendered services from 1991 till the 1999, and that the rules itself contemplate to man the post on transfer. While, therefore, we are unable to issue any mandamus to the state government requiring them to permanently absorb these petitioners in the bureau, we would observe that the state government may consider the case of these petitioners for absorption on transfer in accordance with the rules, if they are found otherwise suitable. In that case the administration would be better served on account of experience, the petitioners have already got in the bureau by serving for eight years.
5. In another decision in Shri N.S. Raghav versus Union of India & Others [OA No.4266/2012 decided on 10.11.2014], a similar issue had arisen for examination before this Tribunal wherein the following issues had been formulated:-
1. Whether the applicant shall continue to be governed by the Recruitment Rules of 2004 or by the Recruitment Rules of 2011 which have come into force w.e.f. 03.06.2011?
2. Whether the provision of NOC to the applicant is tantamount to deemed extension?
3. What relief, if any, could be granted to the applicant?
Here, we find that Issue no.2 is relevant for our consideration. This issue has been concluded that mere extension of NOC does not confer any right upon the applicant to continue. Relying upon the DOP&T OM dated 29.11.2006, this Tribunal held that as stipulated in the rules, a person shall be deemed to be relieved from the date on which his deputation is complete unless the same has been extended. The decision of the Principal Bench of this Tribunal in Ranjit Singh versus Union of India & Others [OA No.936/PB/2013 decided on 21.02.2015] also supports this position.
6. The issue as the one under consideration in the instant OA had come up for discussion in Surender Singh versus Union of India & Others [OA No.2098/2014 decided on 12.03.2015] wherein the learned counsel representing the applicant had raised the same very issue as the one with which we are seized of. This Tribunal had taken the view that while making permanent absorption of an employee something more than the ACRs is taken into consideration. Here we are inclined to be in agreement with the learned counsel for the respondents that had it been a case of absorption of a person purely on the basis of ACRs then perhaps the Screening Committee comprising senior officers would not have been necessary, and absorption would have been a mere clerical exercise. However, that is not the case. While making absorption, the respondent organization also sees future potential of a person to be absorbed for gathering of intelligence and his capability for the task. This Bench had taken the view that a person despite having outstanding ACRs may be lacking in some of the attributes/qualities that make him good officer. Hence, there was something more than the gradings of the ACRs which the Screening Committee examines. For the sake of clarity, the relevant part of the order is being extracted hereunder:-
12 There is no denying that the respondent organization has counter espionage as its main duty. It is a secret organization with the sole output/input intelligence relating to security of the country against incursion of foreign agents, internal agents provocateurs and at subversive elements that hide within us. None can deny that the persons selected for this organization should have the qualities of maintaining secrecy, emerging into crowds, infiltrating the enemy ranks/organizations, gleaning and distilling intelligence inputs out of them. Therefore, it is the Screening Committee along which is competent to judge the functional utility of a deputationist in the long run for his potential to fit into the aforesaid role, and only such persons are retained who have the long time potential for this kind of work. Further, in case of B.S. Parihar versus Union of India & Others [OA No.473/2014 decided on 30.09.2013], this Tribunal held as under:-
17. Moreover, we are also to consider the fact that IB is an organization, which deals with counter espionage and intelligence within the country. It also undertakes good deal of covert operations, which have logic and consideration of their own. The courts cannot, therefore, drill down into every minor detail in every noting and cannot make it justifiable. Where this is to be so, the courts would be engaged overtime only in deciding the cases of absorption in the IB. It is a policy matter. In the case of Maharashtra State Secondary and Higher Secondary Education Board Vs. Paritosh Bhupesh Kumar Sheth, [1984(4) SCC 27], the Honble Supreme Court has held as under:-
28. Far from advancing public interest and fair play to the other candidates in general, any such interpretation of the legal position would be wholly defeasive of the same. As has been repeatedly pointed out by this court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case. In the light of the foregoing discussion, we hold that the High Court was in error in striking down clauses (1) and (3) of Regulation 104 as illegal, unreasonable and void. We uphold the validity of these provisions.
7. As requested by the learned counsel for the applicant, we have summoned the original records and perused the same minutely. It appears that the Screening Committee had interviewed 8 officers including the applicant on 09.05.2012 out of which only 5 officers were recommended while one Raj Pal Yadav was recommended for extension of deputation by one year. It is further to be noted in this regard that the Director of the respondent organization recorded three points to be considered while absorbing a person on permanent basis, e.g., (i) the service records of the person concerned; (ii) his potential for the intelligence work; and (iii) his capability to shoulder higher responsibilities in the respondent-organization keeping in view the promotion which he is likely to earn.
8. The above points represent the policy of the respondent organization which enjoys the protection of Article 33 of the Constitution, and maintenance of its efficiency is in vital interest of the State. To our mind these principles are non-negotiable and must be followed in the interest of the organization and in the larger interest of the country. Government have full rights to take policy measures and bring about such structural changes as deemed fit in the Services in order to raise their standards of efficiency and to make them lean and effective instruments of State polity. This stands supported by decisions of the Honble Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education & Anrs. Vs. Paritosh Bhupesh Kurmarsheth, etc. [(1984)4 SCC 27]. This position has further been reiterated in Bhushan Uttam Khare Vs. The DEAN, BJ Medical College and Ors. (1992)2 SCC 220, State of Rajasthan & Ors. Vs. Lata Raun 2002)6 SCC 252; and Union of India & Anr. Vs. S.K. Goel (2007) 14 SC 641.
9. As regards allegation of mala fide, we find that no person has been impleaded by name. We are fully conscious of the fact that mala fide is easy to allege but difficult to prove. The scope of mala fide has been covered by the decisions of this Tribunal in Sh. Dhirendra Khare, IRS Officer versus C.B.D.T. [OA No.1606/2014 decided on 16.01.2015], R.K. Rai etc. versus Union of India & Others [OA Nos. 3132/2014 and 3130/2014 decided by a common order dated 12.01.2015], Ashes Kiran Prasad versus Union of India & Others [OA No.2848/2014 decided on 07.04.2015] to mention a few. In this regard, the Honble Supreme Court in State of Punjab & Another versus Gurdial Singh & Others [(1980) 2 SCC 471] while discussing what is mala fide and how it is to be proved, held as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
10. In the instant case, we have looked at the original file and found that the issue has been fairly considered by the respondent organization. On the contrary, there are certain glimpses of sympathy towards the applicant and an eagerness to judge the issue fairly. We also take liberty to observe in this respect, if allegation takes place of proof, then every organization would be acting in mala fide manner in respect of every decision that is not to his liking. The analogy can be extended to the metaphor that it would have the effect of converting all employees frustrated in their quest for benefits into riders. We are afraid that such a position is absolutely untenable and cannot be allowed to develop.
11. We would like to conclude here that the case of the applicant is squarely covered by the earlier decisions of this Tribunal. We also take into account that the respondent organization being the one engaged in internal security of the Nation has to have certain priorities while selecting a person for permanent absorption. There are several other points which need to be considered while making permanent absorption of a person which do not necessarily get reflected in ACRs/APARs of the employee concerned. Such qualities can only be judged by persons who have spent years in the organization in positions of responsibility and can be equated to a knack or sixth sense. We are also satisfied on the basis of the record and submissions that no mala fide has been alleged against any particular person/officer. There is not even a trace of evidence to substantiate the allegation of mala fide. To the contrary, the handling on the subject by the respondent organization appears to be fair and equitable. Therefore, we arrive at a finding that the case of the applicant is devoid of merit and the same is accordingly dismissed. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/